Criminal Law

Can the Police Conduct a Personal Search without a Warrant?

Published in: January 2017

Australia’s common law traditions have strong protections to safeguard our personal liberties, which also encompasses the right for our bodies not to be interfered with by another person. Therefore, the common law does not allow the police to conduct a personal search without a warrant – or placing an individual under arrest. Because body searches can be intrusive, there must be reasonable grounds for a police officer to conduct a search. Readers bear in mind that although common law does not allow a body search to be conducted without a warrant, there are certain circumstances under statute law that allows police to conduct a body search without a warrant, or placing a person under arrest.

When can the police conduct a search without a warrant?

The police can search a person without obtaining a warrant if they have reasonable grounds to believe that the person has in their possession:

·         a dangerous weapon

·         illicit drugs

·         stolen, or unlawfully obtained property

·         an object to commit a crime, or cause harm to themselves, or to another person.

Can I not consent to a search?

A person does have the right to refuse a request for a bodily search. However, consent does not need to be obtained if the police have reasonable grounds to believe that a person has in their possession weapons, drugs, or stolen property.

If a police officer is seeking a person’s consent to conduct a search, the consent must be genuinely obtained. An officer conducting a search must clearly state that a search is to be conducted, and that the person not only understands the request being made, but gives permission for a search to take place.

Police obligations when conducting a search

Although statutory powers exist for the police to conduct a search without a warrant, the law still requires that some procedural requirements are met for a search to be legal:

·         the officer must give their name, rank and place of duty

·         the officer must give a reason for conducting the search.

What are the type of searches can the police conduct?

Depending on the State or Federal legislation, there are a number of ways a personal search may be conducted. For example, under s 21A of the Law Enforcement (Powers and Responsibilities) Act in New South Wales, if the police have reasonable grounds to search a person, a police officer can ask a person to open their mouth, or shake their hair. However, the s 21A powers do not give an officer the permission to forcibly open a person’s mouth.

Federal law also allows police to conduct a bodily search if there are reasonable grounds to believe that a person may be involved in a terrorist activity. The Commonwealth Crimes Act allows police to either conduct an ‘ordinary search’ or ‘frisk’ search. An ‘ordinary search’ requires a person to remove an overcoat, coat, jacket, gloves, shoes and hat to allow a police officer to inspect the items for any illegal implements. If a ‘frisk’ search is required, a police officer is allowed to quickly run their hands over a person’s clothing, as well as checking any other item that can be easily examined, or can be voluntarily removed by the person.

The right to personal liberty

The laws that allow the police to conduct a personal search without a warrant attempts to strike a balance between civil rights, and the safety of the community. Both State and Federal legislative instruments recognise the importance of personal privacy by only allowing police to conduct a search on a person without a warrant on reasonable grounds.

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